Shaikh Mohamed Noordin has more than eighteen years of
experience in law librarianship. He has been a librarian in several law firms
in Kuala Lumpur and currently with Belden Advocates and Solicitors as a Library
Consultant. He has contributed several articles to various law librarian
journals, both locally and internationally.

Prior to 1887, it was not known that Islamic law had
existed in Malaysia; in that year, a rectangle shaped stone was found in Kuala
Berang, Terangganu, with an inscription, which detailed a code of Islamic law. The
stone was dated in the year 1303, hundreds of years earlier than the Law of
Malacca Code was first introduced.

Islamic law was established in Malaysia by the fourteenth century.
During the colonial period, the British did not interfere with religion in the
country. Islam was adopted as the religion of the state, with the
Constitution providing that the leader in each state must be a Muslim. Yet,
the Constitution also guarantees full religious freedom to members of all
faiths.

With the exception of Putrajaya, the new administrative
capital of Malaysia, each state in Malaysia, including the Federal Territories (Kuala
Lumpur and Labuan) has its own religious Council. The function of this Council
is to advise the ruler, or the king in non-ruler states, on Muslim and Islamic
matters. All of these Councils are established by state law. The Federal
Constitution also provides that a State Legislature has power to enact laws
relating to, inter alia, personal and family law for Muslims, Muslim Waqf,
Zakat, Fitrah, Baitul Mal, Mosques, the creation and punishment of offences by
Muslims against precepts of Islam, Muslim Courts, the control and propagation
of doctrines and beliefs among Muslims, and the determination of matters of Islamic
Law.

The Muslim courts established by State authorities have
jurisdiction only over Muslims, and have no jurisdiction over criminal offences,
unless specifically conferred by federal law. Most of the Islamic Law that has
been enacted in the States of Malaysia has developed into an independent legal
system, substantially different from the strict Islamic Law of the Syariah,
except perhaps in family law.

[Post] independence (Noordin, the amendment was in 1988
– Article 121(1A)), a constitutional amendment was passed which resolved
any questions of power or jurisdiction which might arise between the Shariah
Court and the Civil Court. This amendment stated that no court has
jurisdiction in any matter, which is under the jurisdiction of the Syariah
Court; in effect, the Civil court has no influence on the jurisdiction of Syariah
Court.

Problems occasionally arise in the implementation of
Islamic Criminal Law. The enactment (or implementation, which?) of the Syariah
Criminal Code in each State does not distinguish between the three types of
crimes in Islamic law, which are Hudood, Qisas and Tazir; rather, they are all
combined, which often causes confusion. In order to gain the confidence of the
public, the Syariah Courts, their Judges and Officers have to show that Islamic
Law is not only the best Law in theory, but also the best in practical
application; hence, the aforementioned confusion is a serious concern.

In Malaysia, most of the books on Islamic law
are written in the Malay language rather than the English language, and contain
many Arabic terms that describe the law.

2. Scope of Islamic
Law

Islamic law is not a legal system, but a legal tradition,
much like the common or civil law tradition. A legal tradition is a set of
related beliefs, attitudes, and practices regarding the necessary components of
a legal system, including the scope and purposes of the law, the manner in
which law is created or discovered, the identity and function of legal actors,
and the manner in which law is learned, implemented, developed and adapted.

Islam has its own personal, civil, criminal, mercantile,
evidentiary, constitutional, and international law. In Malaysia, Islamic law
and customary law were the law of the land long before English law became
prominent, as under the current system. According to the Federal Constitution,
Islamic law is a matter falling within the State List, meaning that the State
Legislature is empowered to enact the law. Exceptions to this are the Federal
Territories of Kuala Lumpur, Labuan and Putrajaya, in which Islamic law is
enacted by the Federal Parliament. Malaysia maintains two parallel justice
systems: the Syariah Court System in each of the thirteen states, and the Civil
Court System for the whole Federation. Each state in Malaysia has its own
Syariah court system, which deals with matters relating to Islamic law in which
the permitted litigants are all Muslim.

All matters pertaining to Islamic law shall only be heard
in the Syariah court; all other cases are heard in the civil courts. The
Constitution has empowered the State Legislature to promulgate Islamic law and
personal and family law for all persons professing the religion of Islam (except with regard to matters
included in the Federal List) such as succession, betrothal, marriage,
divorce, maintenance, adoption, guardianship, trusts, Islamic religious revenue
and mosques. Civil and Criminal law are within the Federal Government’s
jurisdiction, except for criminal offences, which involve Muslims as listed in
the State List. The rules of Syariah are set by various sultans, who serve as Head
of the Islamic religion in their respective states. Because Islamic law is
administered by the respective states, there is a lack of uniformity in the
administration of Islamic law in Malaysia.

3. Sources of Islamic Law

TheQuran is the primary source of Islamic law, as it contains all
the fundamental directives and instructions of God. The Sunnahis the second source of Islamic
law. Sunnah is an Arabic word, which means "Method," and it refers to
the statements, actions, and agreements of the Prophet Muhammad. Its authority
is derived from the text of the Quran. The Quran and the Sunnah are
complimentary – the laws described in the Quran are general in nature,
and the Sunnah makes them specific and particular. The Sunnah explains the
instructions of the Quran. The Quranic injunction is sometimes implicit; the
Sunnah makes it explicit by providing essential ingredients and details. Ijma
(consensus of opinion of scholars) and Qiyas (laws derived through
analogical deduction) are the secondary or dependent sources of Islamic law.
For more information, seeIslamic Law and

4. Where to Find Islamic Law

State legislation is not widely available on the internet,
so it is not easy to find Islamic legislation of the individual states.
However, Islamic law that affects Federal territories is available from several
sources, some of the links to which are listed below.

4.1 Legislation

Since Islamic law is regulated by
state legislative assemblies, the law is published within the respective state
gazettes, except for the Federal Territories of Kuala Lumpur, Labuan and
Putrajaya, in which the Islamic law is enacted by the Parliament and is
published in the Federal Gazettes.

Enacts certain
provisions of the Islamic Family Law regarding marriage, divorce, maintenance,
guardianship and other matters connected with family life. Extension and modification in its
application to Federal Territory Putrajaya – PU (A) 250/2002.

Enables Bank Negara Malaysia to become a member of the
Islamic Financial Services Board by signing and accepting the Agreement establishing
the Board, and confers certain powers, immunities, and privileges upon the
Board and its constituent organs for matters to which it is connected.

4.2 Law Reports

Published
by the Malaysian Current Law Journal (CLJ), this is a compilation of selected cases from the
Syariah Courts. The compilation, which reports 56 Malay language judgments of
the Syariah High Courts/Appeal Courts in Malaysia, and 3 judgments in English
from the Syariah Appeal Board of Singapore, is published in collaboration with
the Department of Syariah Judiciary, Malaysia.

4.4 Introductory Works on Islamic Law

This is the first work of its kind ever to be published in
Malaysia, and is the result of the combined efforts, knowledge, expertise and
practical experience of Syariah law experts and academics. It covers a wide
range of topics such as conflict of laws between Syariah and civil courts;
Islamic banking and its operations; Islamic family law, including betrothal,
marriage, divorce and its ancillary orders; arbitration by Hakam; legitimacy
and maintenance of children, Islamic criminal law and procedure; and Islamic
law of evidence and Syariah civil procedure including contempt of court and
appeals. It also contains provisions of the individual State Enactments, a
wealth of Syariah cases, which have been reported in the Malayan Law Journal
and the Jurnal Hukum, relevant Quranic citations, as well as references to the
Sunnah and Hadith. This title is the definitive and indispensable companion for
all Syariah lawyers, academics, and students, as well as for the public.

4.8 Locating Islamic Law Materials in the Libraries

5. Islamic Law Study
in Malaysia

There are currently six law schools in public universities in
Malaysia –they are University of Malaya, Universiti Kebangsaan Malaysia,
International Islamic University of Malaysia, University Teknologi MARA,
Islamic Science University of Malaysia and Universiti Utara Malaysia. Further
information is available at the links below:

Although there is no restriction for non-Muslims to study Islamic
law in Malaysian universities, a non-Muslim lawyer however cannot practice in the
Syariah courts. The Islamic Council of each state acts as a governing body to regulate
Islamic legal practice and licence Islamic law graduates as 'Syarie' lawyers. In a landmark case recently decided
by the Kuala Lumpur High Court, a non-Muslim lawyer lost in her bid to
challenge the requirement of the Islamic Council that a Syariah lawyer must be
a Muslim. The lawyer who holds a diploma in Syarie Law and Practice (DSLP)
conferred by the International Islamic University Malaysia failed to get an
order to compel the Federal Territory Islamic Religious Council to accept her
application to be a Syariah lawyer .